Citation Nr: 9902888
Decision Date: 01/29/99 Archive Date: 02/04/99
DOCKET NO. 94-16 269 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in San Diego,
California
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Don Hayden, Counsel
INTRODUCTION
The veteran served on active duty from August 1942 to
December 1945.
This matter has come before the Board of Veterans' Appeals
(Board) on appeal by the veteran's surviving spouse from an
April 1993 rating decision by the Department of Veterans
Affairs (VA) Regional Office (RO) in San Diego, California,
which denied service connection for the cause of the
veteran's death. In July 1996, the Board remanded this case
for further development, which has been completed.
In the substantive appeal, the appellant requested a hearing
before a member of the Board at the RO (Travel Board
hearing). In April 1994, she said that after being informed
of the delay in Travel Board hearings, she wished to withdraw
her request for one. In July 1996, pursuant to the Board’s
remand, the RO advised the appellant that she had been placed
on the list of persons desiring a Travel Board hearing and
that it would remain on the list unless she stated otherwise.
In an undated Report of Contact, the representative stated
that he had talked with the appellant and that she did not
desire a Travel Board hearing.
The appellant has filed a claim for compensation benefits
under the provisions of 38 U.S.C.A. § 1151 (West 1991 & Supp.
1997) which was denied by an August 1998 rating decision.
The appellant has indicated that she does not wish to appeal
that rating decision.
FINDINGS OF FACT
1. There is no competent, probative evidence that
subarachnoid hemorrhage, the immediate cause of the veteran's
death as listed on the death certificate, was manifested
until decades after service, was the result of a service-
connected disease or injury, or was related to treatment for
a service-connected disability.
2. There is no competent, probative evidence that either
cerebral aneurysm or hypertension, listed on the death
certificate as significant conditions contributing to death,
was present in service, compensably manifested within one
year after service or otherwise related to service.
3. There is no competent, probative evidence that service-
connected traumatic brain disease played any role in causing
or hastening the veteran's death.
CONCLUSION OF LAW
The claim for service connection for the cause of the
veteran's death is not well grounded. 38 U.S.C.A. § 5107(a)
(West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
The April 1993 rating decision, from which this appeal was
taken, noted that service medical records were not available
and that an April 1989 communication from the National
Personnel Records Center indicated that the claims folder had
not been found and that a rebuilt folder had been sent.
Attempts to obtain service medical records have produced only
supplemental records from the Office of the Surgeon General
which show that the veteran was hospitalized in May 1944.
The first diagnosis was concussion (sudden blow of object);
location - brain cerebrum, generally. The second diagnosis
was compound fracture, with no nerve or artery involvement;
location -cranium, face and neck (excluding vertebral): Nasal
bones. These injuries were incurred when the veteran fell
from a vehicle.
During the veteran's lifetime, service connection was in
effect for traumatic brain disease which was rated 30 percent
disabling.
The veteran was hospitalized by the VA in January 1985
because of a subendocardial myocardial infarction. At the
time, his blood pressure was 130/87. In February, his blood
pressure was 132/80. At an outpatient examination in June
1985, his blood pressure was 115/78. In November, it was
100/60. In April 1986, his blood pressure was 138/86 and the
diagnostic assessment was stable coronary artery disease. In
October, blood pressure was 140/80. In April and September
1987, it was 128/80.
In February 1988, the veteran’s blood pressure was 146/82, a
week later it was 138/82, and in June it was 112/80. In June
1988, it was recorded that he jogged three to four miles a
day, without angina equivalent (indigestion), shortness of
breath or orthopnea. The assessment was status post
myocardial infarction without angina, continues to be very
active physically. In September 1988, his blood pressure was
120/80, and in March and September 1989 it was 132/84. In
March 1989, it was recorded that he had had no chest pain
since 1985.
During a December 1989 VA examination, it was noted that the
veteran had had a skull fracture in service, which had been
treated by placing plastic plates above his eyebrows. His
history was positive for hypertension; the examiner said that
it was probably high before his myocardial infarction and
that he had never been medicated. His blood pressure on
examination was 134/84.
In January 1991, the veteran's blood pressure was 120/80. In
October, it was 120/80. He was seen in October 1992, at
which time he denied shortness of breath, chest pain and
claudication. He did complain of pain in his right arm and
leg secondary to a motor vehicle accident and degenerative
joint disease changes in the right leg. His blood pressure
was 120/70.
In November 1992 the veteran was seen for complaints of right
leg claudication. It was noted that about 10 months earlier
he had noted a lateral thigh pain with movement. A limp
developed over the next two months and had remained stable
over the following eight months. The pain had also remained
similar but had increased slightly. The veteran was not
capable of walking normally. The physician stated the pain
was not consistent with claudication in location or
character. The veteran was scheduled for additional
evaluations in rheumatology and orthopedic clinics to attempt
to ascertain the cause of the pain.
None of the medical records between 1985 and 1992 show any
complaints or findings regarding the skull fracture in
service or the plates in the veteran’s skull.
The veteran was hospitalized at the Grossmont Hospital in
December 1992 because of complaints of severe eye pain and
headache. It was noted that while at home he had told his
wife he had a severe headache around the left eye and that he
then loss consciousness. She called the paramedics who found
him having a hard time maintaining an airway. His blood
pressure was 240/120. Initially, he was moving all four
extremities, but by the time they arrived at the hospital, he
was moving a lot less and the paramedics felt he needed to be
intubated. It was noted that his past medical history was
positive for arterial hypertension. The initial impression
was intracranial hemorrhage. A CT scan of the veteran's head
demonstrated a prominent increased density in the third and
lateral ventricles as well as the fourth ventricle consistent
with intracerebral hemorrhage. There was also a prominent
amount of blood in the posterior systems as well as the
region of the right side of the brain stem. Moderate
hydrocephalus was also noted. The impression was prominent
intraventricular hemorrhage as well as subarachnoid
hemorrhage. Intracerebral bleeding was also noted in the
brainstem and midbrain. The CT scan was interpreted as
revealing a massive subarachnoid hemorrhage that extended to
the brainstem. The initial impression was intracranial
hemorrhage. The final diagnoses were intracerebral
hemorrhage and intraventricular hemorrhage. He died during
that hospitalization.
The death certificate shows that the veteran died in December
1992 at 73 years of age. The immediate cause of death was
listed as acute subarachnoid hemorrhage of three days'
duration due to a probable cerebral aneurysm due to
hypertension. It was reported that there were no other
significant conditions contributing to cause death. The
duration of the probable cerebral aneurysm was listed as
unknown and hypertension listed as years. An autopsy was not
performed. M. H. Soumekh, M.D, signed the death certificate.
At an August 1993 hearing at the RO, the appellant testified
that to the best of her knowledge the veteran had never had
hypertension. She said that her husband was in good health
until shortly before his death, at which time his condition
deteriorated rapidly and he had decreased vision in one eye.
Transcript.
In a brief submitted at the hearing, the appellant stated
that the “cardiovascular surgeon” had sent her a copy of
the information in his office files; he pointed out that he
had not said the veteran had hypertension at the time of
death and that there was no mention of a possible aneurysm.
However, the cardiovascular surgeon reportedly declined to
change the death certificate due to legal reasons. Page 4 of
5. The appellant concluded that the plates in the veteran’s
head, or the bones holding them, had deteriorated and that
pressure was forming on the nerve endings and blood vessels
in his brain. These changes caused right leg pain and
diminished eyesight. The hemorrhage occurred when his system
could no longer stand the pressure. She asserted that the VA
medical records showed no other possible cause. Along with
her statement, the appellant submitted copies of various
documents addressed elsewhere in this decision. Based on the
documents, it appears that the vascular surgeon referred to
was Dr. Soumekh.
In April 1994, the appellant reported that her husband did
not jog, swim or ride a bicycle during the years they were
married. She said she had hired contractors to remodel their
home. She also reported that following service he had
diminished vision in his right eye, loss of some motor skills
and involuntary, jerking, thrashing movement of his leg when
he was at rest. Various acquaintances of the veteran
submitted statement to the combined effect that they had
known the veteran for up to 10 years and during that time he
did not jog, ride a bicycle or swim.
In August 1996, the appellant reported that she had met the
veteran in 1979 when he had just arrived in California from
New Jersey. She said she was not aware of any verification
or of information regarding his life prior to that time. She
said all the veteran's treatment had been by the VA.
In October 1997, the RO requested a review of the file and
opinions from a board-certified diagnostic radiologist and a
specialist in cerebral vascular diseases. The radiologist
reviewed outside studies, presumably from Grossmont Hospital,
consisting of axial images of the brain. In the posterior
fossa, there was evidence of hemorrhage in the right
cerebellar hemisphere measuring approximately 3 centimeters
in diameter with mass effect on the brainstem. The
brainstem, itself, had decreased attenuation, suggesting
developing edema. Local areas of high density suggested
brainstem hemorrhage. The basal systems were completely
opacified with hemophagic material, suggesting a subarachnoid
compound. The third ventricle was dilated and completely
filled with hemorrhagic material. Both lateral ventricles
were dilated with intraventricular hemorrhage. There was a
periventricular decrease in white matter attenuation which
suggested a transependimal flow and/or prior ischemic white
matter changes. There was also an area of hemorrhage within
the right thalamus. The impression was multicompartmental
hemorrhage with mass effect on the brainstem causing edema
and obstructive hydrocephalus.
The cerebrovascular specialist, a neurologist, after
reviewing the file, noted that there was a history of an
injury during service with plastic plates being inserted
above the eyebrows. The physician said it was his opinion
that there was no relationship between the previous head
trauma and the presence of the plate and the hemorrhage. It
was noted that the type of hemorrhage the veteran had would
not be caused by the plates moving or pressure building up in
the brain from the plates. The physician said it was unclear
whether this was a primary subarachnoid hemorrhage or whether
there was a hemorrhage within the brain parenchyma in
multiple areas with secondary hemorrhage. If it were a
primary subarachnoid hemorrhage, an aneurysm would be the
most likely etiology; there was no recent trauma. If the
primary area were the cerebellum with a secondary hemorrhage
into the ventricles, the hypertensive etiology would be a
more likely explanation and it would be a primary
intracranial hemorrhage with secondary subarachnoid
hemorrhage. The physician said that in either case, with
either cause the prior head trauma movement of the plates was
not a cause of the problem. He said that the plates were in
the frontal area and he could not come up with any type of
reasonable scenario in which any movement of the plates could
have caused that type of problem.
In a January 1998 statement, the appellant reported that the
veteran had received all of his medical treatment from the
VA. She said that he was not on medication for hypertension
and was not taking any prescribed medication at the time of
his death. She said that the veteran’s last words were a
complaint about having the worst pain he had ever had behind
his bad right eye; he then lost consciousness and never
awakened.
Criteria and Analysis
The Board finds that the directives in the remand have been
completed to the extent possible. Stegall v. West, 11 Vet.
App. 268 (1998). The appellant has withdrawn her request for
a Travel Board hearing and has indicated that she has no
knowledge of any medical treatment the veteran had prior to
the time she met him. The NPRC has indicated that there are
no further records regarding the veteran’s injuries in
service. It appears that all identified records of post-
service treatment have been obtained. Pursuant to the
Board’s remand, the RO obtained medical opinions from a
radiologist, who reviewed outside diagnostic studies, and
presumably from a specialist in cerebral vascular diseases.
The death of a veteran will be considered as having been due
to a service-connected disability when the evidence
establishes that such disability was either the principal or
a contributory cause of death. The service-connected
disability will be considered as the principal (primary)
cause of death when such disability, singly or jointly with
some other condition, was the immediate or underlying cause
of death or was etiologically related thereto. Contributory
cause of death is inherently one not related to the principal
cause. In determining whether the service-connected
disability contributed to death, it must be shown that it
contributed substantially or materially; that it combined to
cause death; that it aided or lent assistance to the
production of death. It is not sufficient to show that it
casually shared in producing death, but rather it must be
shown that there was a causal connection. 38 C.F.R. § 3.312
(1998).
Generally, minor service-connected disabilities, particularly
those of a static nature or not materially affecting a vital
organ, would not be held to have contributed to death
primarily due to unrelated disability. In the same category
would be included service-connected disease or injuries of
any evaluation (even though evaluated as 100 percent
disabling) but of a quiescent or static nature involving
muscular or skeletal functions and not materially affecting
other vital body functions. Service-connected diseases or
injuries involving active processes affecting vital organs
should receive careful consideration as a contributory cause
of death, the primary cause being unrelated, from the
viewpoint of whether there were resulting debilitating
effects and general impairment of health to an extent that
would render the person materially less capable of resisting
the effects of other disease or injury primarily causing
death. Where the service-connected condition affects vital
organs as distinguished from muscular or skeletal functions
and is evaluated as 100 percent disabling, debilitation may
be assumed. 38 C.F.R. § 3.312 (c)(3).
There are primary causes of death which by their very nature
are so overwhelming that eventual death can be anticipated
irrespective of coexisting conditions, but, even in such
cases, there is for consideration whether there may be a
reasonable basis for holding that a service-connected
condition was of such severity as to have a material
influence in accelerating death. In this situation, however,
it would not generally be reasonable to hold that a service-
connected condition accelerated death unless such condition
affected a vital organ and was of itself of a progressive or
debilitating nature. Id.
The first determination that must be made with regard to a
claim is whether it is well grounded. See 38 U.S.C.A.
§ 5107(a), Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). A
well-grounded claim is a plausible claim that is meritorious
on its own or capable of substantiation. See Murphy,
1 Vet.App. at 81. An allegation that a disorder is related
to service is not sufficient; there must be evidence in
support of a claim that would “justify a belief by a fair
and impartial individual that the claim is plausible.” See
38 U.S.C.A. § 5107(a), Tirpak v. Derwinski, 2 Vet.App. 609,
611 (1992). The quality and quantity of the evidence
required to meet the statutory burden will, of necessity,
depend upon the issue presented by the claim. Grottveit v.
Brown, 5 Vet.App. 91, 92-93 (1993). In general, in order for
a claim for service connection to be well grounded, there
must be competent evidence of a current disability (a medical
diagnosis), of incurrence or aggravation of a disease or
injury in service (lay or medical evidence depending on the
circumstances), and of a nexus between the inservice injury
or disease and the current disability (medical evidence).
Caluza v. Brown, 7 Vet.App. 498 (1995).
In substance, it is contended by the appellant that a skull
injury during service was the underlying cause of the
veteran’s death. She says that plates placed in his skull to
repair fractures sustained in service eventually deteriorated
or moved, causing the hemorrhage which was the immediate
cause of death. She says that every doctor with whom she has
spoken, has informally agreed that the veteran’s death was
caused by the plates; otherwise, he would have been on
medication for hypertension and he was not. She asserts that
there is no competent evidence that the veteran had
hypertension or an aneurysm prior to the time of his death.
The representative requests that the Board obtain an
independent medical opinion and argues that the service-
connected traumatic brain disease should be considered a
contributory cause of death under the provisions of 38 C.F.R.
§ 3.312(c)(3) (1998) because the brain is a vital organ and
the service-connected traumatic brain disease and the cause
of death are inextricably intertwined. It is also asserted
that the RO did not complete all development requested by the
remand, because there the medical opinions obtained reached
vague conclusions, with no specific etiology to explain the
veteran’s death and no conclusions as to the relationship
between service-connected traumatic brain disease and the
radiographic findings noted in the October 1997 opinion.
Basically, the appellant appears to be claiming that the
veteran’s fatal brain hemorrhage could not have been caused
by hypertension because the veteran did not have hypertension
and that he was not found to have an aneurysm; therefore,
the skull plates in his head had to have caused his death.
However, she has not presented any medical evidence or
opinion supporting her claim.
Because the relationship between the service-connected
residuals of head injury and/or its treatment and the
veteran’s death involves a medical question, the opinion of a
lay person, such as the appellant, does not constitute
competent evidence of such a relationship. See Grottveit, 5
Vet.App. 91, 93. There is no competent evidence that the
brain hemorrhage which caused the veteran's death was related
to the skull injury in service. In fact, the only competent,
medical evidence that addresses any relationship between the
head injury and the veteran’s death is the October 1997
opinion, which goes against the claim. The appellant’s
assertions do not constitute competent medical evidence since
there is nothing in the file to suggest that she qualifies as
a medical professional nor has she contended otherwise.
Espiritu v. Derwinski, 2 Vet. App. 492 (1992)
There is also no competent evidence that the traumatic brain
disease contributed to cause the veteran's death. There is
no indication that the traumatic brain disease was
progressive or that there was any general debilitation from
traumatic brain disease. In fact, there is no competent
evidence in the record that the veteran was having any
problems with traumatic brain disease. The appellant has
attempted to link the pain in his leg to traumatic brain
disease but has produced no competent evidence of such a
relationship. Moreover, when the veteran was examined for
the pain in his leg shortly before his death, there was no
indication that the examiner suspected traumatic brain
disease as a possible etiology.
The appellant has said that every doctor with whom she spoke
informally agreed that the veteran’s death was caused by the
plates in his death; otherwise, he would have been on
medication for hypertension and he was not. However, her
statements of what she purportedly has been told by
physicians do not serve to make the claim well grounded.
Robinette v. Brown, 8 Vet. App. 69 (1995). No doctor has
made such a statement for the record. Her specific reference
to a cardiovascular surgeon appears to have been a reference
to Dr. Soumekh who not only cared for the veteran during his
terminal hospitalization but also signed the veteran’s death
certificate.
If, as alleged, Dr. Soumekh (or any other physician) believes
that the cause of death on the certificate is incorrect,
there are procedures for revising it. However, even if the
veteran did not have hypertension and did not have a brain
aneurysm, there would still have to be competent evidence
that his brain hemorrhage was related to a service-connected
disability. Dr. Soumekh has not proffered any written
opinion in support of the appellant’s claim, and the
appellant’s recitation of what he (or any other doctor)
purportedly told her is not the equivalent of medical
evidence and is not sufficient to make the claim well
grounded. Robinette v. Brown, 8 Vet.App. 69 (1995).
While an independent medical specialist opinion has been
requested, the claim is not well grounded and, therefore, the
VA has no duty to obtain one. Although the representative
asserts that the medical opinions obtained by the RO are
inadequate because the conclusions were vague and
nonspecific, with no specific etiology to explain the
veteran's death, the Board believes that they represent the
best medical judgment that can be obtained on this matter.
While the examiner was unable to precisely establish the
cause of the veteran’s fatal hemorrhage, he specifically
stated that the plates, located in the frontal area of the
veteran’s head, would not have caused the type of hemorrhage
experienced by the veteran and that he could not create any
type of reasonable scenario in which movement of the plates
would have caused that type of problem. Any contrary theory
that the appellant may have as to the cause of the brain
hemorrhage must be supported by medical evidence or opinion
to render the claim well grounded. Such evidence or opinion
is lacking in this case.
Although VA does not have a statutory duty to assist a
claimant in developing facts pertinent to a claim that is not
well grounded, VA may be obligated under 38 U.S.C.A. §
5103(a) to advise a claimant of evidence needed to complete
his application. Here, the facts and circumstances relative
to the issue on appeal with respect to service connection are
such that no further action is warranted at this time. There
does not appear to be any outstanding evidence of which VA is
on notice.
ORDER
Service connection for the cause of the veteran's death is
denied.
JANE E. SHARP
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.7
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